Public Suits (graphai): A hallmark of Athenian democracy was that any willing individual could bring a public action on behalf of the city. In fact, because there was no regular office of public prosecutor in Athens, the city relied for the most part on volunteers to initiate suits on its behalf. While volunteer prosecution was central to the democracy, tensions surrounded it. In particular, the public appears to have been concerned about what motivated volunteers to bring public actions: notwithstanding the predictable claims of volunteers that they were patriots serving their city, the public often suspected that they were driven by less attractive—even sycophantic—motivations.

Aristophanes provides an engaging and amusing look at the problematic status of the volunteer prosecutor in his Plutus (388 B.C.). A restless character appears on stage making threats and levelling false charges and is eventually identified as a sycophant. This manifest sycophant, however, argues that he is in fact a patriot, much to the bewilderment of his interlocutor, Dikaios (“Just Man”):

Dikaios: Are you a good and patriotic citizen?
Sycophant: As no other man.
Dik.: All right, answer a few questions for me.
Syc.: Go ahead.
Dik.: Are you a farmer?
Syc.: Do you think I’m so crazy?
Dik.: A trader?
Syc.: Yes, at least I pretend to be, whenever it suits me.
Dik.: What do you do then? Did you learn some trade?
Syc.: By Zeus, no.
Dik.: How then have you been making a living, if, as you say, you do nothing?
Syc.: I am the superintendent of all affairs, public and private.
Dik.: You? How’s that?
Syc.: I volunteer.
Dik.: But how could you be a good citizen, you thief, when you’re hated for getting involved in what is no concern of yours?
Syc.: You simpleton. Isn’t it my concern to be the benefactor of my own city as best I can?
Dik.: Is meddling in others’ affairs the same as being a benefactor?
Syc.: Coming to the rescue of the established laws certainly is, and not permitting anyone to transgress them.
Dik.: Is it not for that reason that the city puts jurors in office?
Syc.: But who does the prosecuting?
Dik.: Any volunteer.
Syc.: Precisely, and as I said, I am that person, and so the affairs of the city have fallen upon me.
Dik.: By Zeus, if that is so, then the city has a base protector.
(Aristoph. Pl. 901-20)

While the sycophant’s defense of the institution of volunteer prosecution is compelling—after all, it was a fundamental part of the Athenian democracy—his ability to usurp the role of volunteer prosecutor for his own purposes is troubling. Although the role may be a legitimate one, Aristophanes suggests, it may attract meddlesome individuals who wish to exploit it for private ends.

That the concerns raised by Aristophanes were very real ones for Athenians is confirmed by surviving forensic orations. Lycurgus, for example, confronts directly the public’s misgivings concerning volunteer prosecutors near the beginning of his prosecution of Leocrates for treason (330 B.C.):

“Gentlemen, I would wish that, since it is beneficial to the city that there are men who bring lawbreakers to judgment here, the people would view this as a benevolent activity. In fact, the opposite is true: anyone who takes on himself personal risk and incurs enmity [of defendants] on behalf of the public appears [to his fellow citizens] to be fond not of the city, but of lawsuits. This is neither just nor advantageous to the city. For three things in particular guard and preserve the democracy and the city’s prosperity: first, the system of laws; second, the vote of jurors; and third, the method of prosecution that hands over crimes to them. The law exists to lay down in advance what must not be done, the accuser to report those who are subject to penalty under the laws, and the juror to punish all who have been exposed by these two. Thus neither the law nor the vote of the jurors has any strength without someone to hand over offenders to them.” (1.3-5)

While this is an eloquent defense of a democratic institution, Lycurgus’ audience may reasonably have wondered if patriotism was the only motivation behind this prosecution brought by a prominent politician. Athenians were cynical about human nature, and were highly attuned to the fact that self-interests of various sorts could lead individuals to volunteer as prosecutors.

Volunteer prosecutors, aware of jurors’ cynicism concerning their motivations, often choose to disclose their personal motivations for volunteering, but cast these as honorable. Especially striking from a modern perspective is the way volunteers sometimes openly acknowledge that they are personal enemies of defendants. This strategy capitalizes on Athenian views of personal enmity. Athenians viewed it as natural that men should want to do harm to their enemies; if one’s enemy did some harm to the city, this was a golden opportunity to seek vengeance. Athenians were apparently ready to accept, moreover, that an individual acting on the basis of personal enmity was unlikely to be driven as well by corrupt motivations—for example, the base pursuit of financial gain.

Prosecutors who acknowledge the role of personal enmity in inducing them to litigate characteristically present their private interests as fully compatible with public ones. For example, when Aeschines prosecutes his personal enemy Timarchus, he asserts: “What is so frequently said of public suits is no mistake, namely, that very often private enmities correct public abuses” (1.2). Lysias, in his prosecution of Eratosthenes (one of the notorious Thirty in 404/3 B.C.), deftly interweaves his personal enmity for the defendant with the public’s hatred of him:

“It seems to me that our positions will be the reverse of what they were in former times: for previously the prosecutors had to explain their enmity toward the defendants, but in the present case one must inquire of the defendants as to the source of their enmity toward the city in committing such audacious offenses against it. It is not, indeed, from any lack of private enmity and suffering that I make these remarks, but because of the abundant reasons that all of us have for anger on personal or public grounds.” (12.2)

Thus, Lysias suggests, conviction of Eratosthenes would satisfy the need both for private and public vengeance on him for his crimes.